Ramin v. RaminRamin v. Ramin
Lead Opinion
Opinion
The plaintiff, Melissa K. Ramin, appeals from the judgment of the trial court dissolving her thirty year marriage to the defendant, Kurt P. Ramin. On appeal, the plaintiff claims that the trial court: (1) improperly failed to adjust her proportionate share of the defendant’s retirement assets after acknowledging an error in its initial determination of their value; (2) improperly relied on Maguire v. Maguire,
The record reveals the following relevant facts. The parties were married on December 30, 1972.
The trial court concluded that the evidence supported the plaintiffs claim that the defendant “used at least $395,000 in marital assets, including a partial distribution from his capital deposit account ($174,023), a payment of special compensation ($208,725), and a joint income tax refund ($12,736), for the purchase of such things as a BMW automobile, an apartment in Düsseldorf, Germany, and to maintain his lifestyle in Europe.” (Emphasis in original.) The court also found that the defendant had attempted to “keep these assets out of reach by placing title in the names of other persons” and that the plaintiff had expended “enormous sums for attorney’s fees, in large part to trace these assets, with limited success.” The court further found that each party had sufficient assets to pay for their respective attorney’s fees.
The court ordered the marriage dissolved. In accordance with its findings, the court also made the following financial orders: (1) that commencing September 1, 2003, the defendant make monthly payments to the plaintiff in the amount of $5000, until the death of either party, the remarriage of the plaintiff, or August 31,2007, whichever shall occur sooner; (2) that the defendant convey his interest to the plaintiff, via quitclaim deed, in the jointly owned marital home in Weston; (3) that the defendant convey his interest to the plaintiff, via quitclaim deed, in jointly owned real estate at 750 State Street in Eaton Rapids, Michigan; (4) that the defendant retain his interest in inherited real property in Liebenwaide, Germany; (5) that the defendant retain his interest in an apartment in Düsseldorf, Germany; (6) that each party retain personal property and home furnishings in their respective residences; (7) that each party retain their respective automobiles; (8) that each party retain, except as otherwise set forth in the court’s orders, their respective savings, checking and money market accounts; (9) that the defendant retain his shares of The Translation Group, Ltd., stock, moneys held by Martina Meyer, shares of Smith Barney
The plaintiff appealed to the Appellate Court from the judgment of the trial court. Thereafter, the defendant moved to reargue and the trial court granted the plaintiffs motion for articulation and granted a hearing on the defendant’s motion to reargue. Following the hearing, the trial court denied the defendant’s motion for reargument and clarified its original decision. The plaintiff then filed a separate appeal after the trial court’s ruling on the motion to reargue. The Appellate Court subsequently granted the plaintiffs motion to consolidate the two appeals. Thereafter, we transferred the consolidated appeals to this court pursuant to
I
We first consider the plaintiffs claim that the trial court abused its discretion in declining to rule on her motion for contempt and sanctions, filed in court on August 14, 2002, based on the defendant’s repeated failure to comply with the court’s discovery orders. Because we conclude that the trial court had no discretion to mark the plaintiffs motion “off’ the calendar, we agree with the plaintiff that the court’s action was improper.
The following additional facts are relevant to our resolution of this claim. On August 2, 2000, the plaintiff filed her first discovery request for disclosure of facts and production of records. After the defendant failed to comply with her request, the plaintiff filed a motion for contempt. On October 23, 2000, the court ordered the defendant to comply with the discovery request. When the defendant produced, in
Thereafter, on August 14, 2002, the plaintiff filed her fifth motion for contempt. In the motion, the plaintiff detailed the history of her production requests, motions for contempt, resulting court orders, and the defendant’s consistent failure to comply with discovery requests and orders. The motion also identified in great detail the specific items of discovery that the defendant had not yet supplied pursuant to those orders.
When the motion came on for hearing before the court on September 9, 2002,
After hearing the plaintiffs brief presentation of some of the procedural background that had prompted her to file the fifth motion for contempt, the court, noting that the action had been initiated in late September, 1999, stated that it “probably is the oldest case on my docket,” and that the case had “been going on far too long, folks. This case is going to be tried.” When informed that trial dates had been set for December 1, 2 and 3, 2002, and a deposition of the defendant had been scheduled for October, 2002, the court repeated that “this has just got to be tried.” When the defendant’s attorney asserted that “[s]everal things have been said in this motion and the characterizations just aren’t correct,” and when the plaintiffs attorney reminded the court that she had not had an opportunity to present her arguments on the motion in a systematic and detailed manner, and further pointed out that the defendant’s attorney was responding to the motion “in a piecemeal fashion,” the court responded: “[T]ime out both of you . . . the way I look at this is I think . . . this has been done to death, and ... I just don’t see how further sanctions are going to help. I don’t see where further orders are going to help. This case
The plaintiffs attorney then again reminded the court that she still had not received documents and authorizations requested in the August 14,2002 motion, and asked the court: “[W]hy does it then become my burden to say again and again and again we are still waiting for these documents, they haven’t come?” The plaintiffs attorney then attempted to bring to the court’s attention some of the specific items of discovery that the defendant had not produced despite court orders to do so, referring specifically to Citibank Visa statements, American Express statements and a copy of the defendant’s 1999 amended tax return, all of which had been requested but not produced, despite court orders for compliance.
When the plaintiffs attorney attempted to continue, the court said: “Folks, stop it. . . . [A]re you getting the message from me? Stop it. I really don’t want to hear anymore about this. Three years is enough to get this case tried one way or the other. And I have not got the time, I haven’t got the patience to go through line-by-line on a discovery thing that’s been kicking around for three years. I just don’t have it.
“I’ve got . . . 200 cases on my docket that are over one year old. I inherited that, and I have not been able to move that log jam in [the] two years that I’ve been sitting here. And I’m looking through this file. This whole thing is all about . . . discovery. That’s what you’ve been fighting. . . .
“[T]his case should have been tried two years ago. So try it, folks. Get your depositions done. . . . [Y]ou’re scheduled for trial. Just take your best shot. . . . [T]here’s no such thing as a [100] percent job. There’s just no such thing anymore . . . .”
When the plaintiffs attorney attempted to respond, the court interrupted and said: “I’m sure you have a core of good, vital information that you can work with. . . . It’s time to get this thing done, and ... if I start to have this hearing, I’ll be . . . all morning on this, tomorrow, going through this one line item at a time. . . . We just don’t have the manpower, the resources, to do this.”
The plaintiffs attorney then stated to the court: “You’re telling me we have a core of documents, but I don’t. I don’t have one check register from [the defendant]. I don’t know where he writes his check[s]. . . . I don’t have that information.” The court responded: “[T]hen you take his deposition in October and you ask some of those questions, and maybe we can zero in on some of this, but I can’t take a shotgun blunderbuss approach to discovery on a three year old case. It’s got to be tried. . . . I’ve issued the largest sanctions I have issued in my two and a half years on the bench against [the defendant]. All right? So I think it’s time to try this case. That’s the message I have for both of you. Take your depositions, see where you go.
The abuse of discretion standard applies to a trial court’s decision on a motion for contempt. Sablosky v. Sablosky,
In Ahneman, the defendant had filed an appeal from the trial court’s postjudgment order modifying alimony and support. Id., 473. While the appeal was pending, the defendant filed in the trial court a number of motions that concerned both financial and nonfinancial issues. Id., 474. The trial court specifically stated that it would consider the defendant’s motions regarding nonfinancial issues but refused to consider her motions dealing with financial issues. Id., 476.
On the ultimate appeal to this court,
This reasoning of Ahneman applies directly to the present case. In refusing to decide the motion before it by marking it “off,” the trial court abdicated its fundamental obligation to decide all matters properly presented to it. Just as in Ahneman, the court had the case and the plaintiffs motion properly before it. Just as in Ahneman, it was the court’s duty to determine the questions raised by the motion. Indeed, just as in Ahneman, this was a marital dissolution case, and the plaintiff had a compelling need for enforcement of the court’s prior discovery orders in order to prepare and to try her case; this was part of the court’s duty of “continuing dispute resolution . . . .” Id., 484.
We also recognized, in Ahneman, however, “that exceptions to the general rule that a trial court must consider and decide on a reasonably prompt basis all motions properly placed before it may exist in an extreme, compelling situation. For example, we do not rule out the possibility that a trial court may have discretion to refuse to entertain or decide motions in order to prevent harassing or vexatious litigation. See In re Martin-Trigona,
There is no claim that the plaintiffs attempt to enforce the court’s prior orders of discovery was harassing or vexatious, nor did the trial court suggest that such a conclusion formed the basis of its decision.
This was a case in which the financial situation of the defendant was extremely complicated. Furthermore, the complications were exacerbated by the following facts: it was the defendant who had sole access to Ms financial information and documents; during the proceedings he lived and was employed in London, wMle the plaintiff remained in Connecticut; one of Ms mistresses, Landgren, was also a business associate to whom he had executed a promissory note in the amount of $450,000, in purported connection with a public offering by her company, The Translation Group, Ltd., of which the defendant claimed to be a part owner; and the plaintiff claimed that the promissory note to Landgren was fraudulent and that certain substantial payments that the defendant had made to Landgren while tMs case was pending, purportedly in payment of that note, were really attempts to defraud the plaintiff of part of the marital estate.
M addition, it is undisputed that the case was rife with discovery misconduct by the defendant. During the pendente lite process, pursuant to four motions for contempt by the plaintiff, the court had ordered the defendant to make disclosures that he had failed to make, and had severely sanctioned the defendant. In this connection, it is significant that, in the proceedings at issue on September 9, 2002, the plaintiff was not attempting, at a late stage, to obtain additional discovery that she had failed to request earlier; she was attempting merely to secure, prior to the trial, the discovery that the court already had ordered the defendant to supply to her. Thus, she merely was requesting that the court enforce the orders that it earlier and repeatedly had entered.
All of these facts made both the plaintiffs need for full discovery and, correspondingly, the defendant’s obligation to supply full and fair disclosure compelling. See Billington v. Billington,
A brief examination of the court’s expressed reasons for refusing to consider the plaintiffs motion reveals that the court did not base its refusal on any extreme and compelling circumstance that would have justified its decision. In summary, the court’s comments reveal the following reasons for not ruling on the plaintiffs motion: (1) because the motion was lengthy and detailed, it would consume too much of the court’s time to consider it, particularly in light of the court’s backlogged docket; (2) the discovery stage of the case already had been pending too long, three years, and, therefore, the case should go to trial without further delay; (3) the plaintiff had enough information to go forward and should take her “best shot,” because “there’s no such thing as a [100] percent job”; and (4) the imposition of further sanctions on the defendant would not “help,” that is, they probably would not result in the defendant’s cooperation. None of these reasons proffered by the court in support of its refusal to
We explain briefly why each of the court’s proffered reasons for its refusal to entertain the plaintiffs motion does not justify its decision. First, a court may not refuse to consider a motion in one case because such consideration will delay the disposition of other cases filed by other litigants and because the court believes it has neither the time nor the resources to address a lengthy and detailed motion. On the contrary, “[c]ourts are in the business of ruling on litigants’ contentions . . . .” Ahneman v. Ahneman, supra,
Second, under the circumstances of the present case, the imposition of a three year time limit on the discovery process ignores the fact that it was the defendant’s abuse of the discovery process — the very abuse that was the subject of the motion — that was responsible for the delay. Such a rule effectively penalizes the innocent party, and rewards the party who has abused the discovery process.
Third, the court’s suggestion that the plaintiff had secured enough discovery ignores the plaintiff s claims to the contrary — again, the subject of the very motion that the court refused to consider. Moreover, the court’s advice to counsel that she should take her “best shot,” and that the plaintiff should not expect 100 percent performance is not reconcilable with the ethical duty of zealous representation that counsel owes to a client. We have admonished counsel that they are
Fourth, the court may not refuse even to consider a motion for contempt based on its doubts that the imposition of further sanctions will result in the wrongdoer’s compliance. Such a justification invites parties in a dissolution action to defy court orders and be recalcitrant in their noncompliance because eventually courts will throw up their hands in defeat.
Subsequent proceedings in the present case illustrate precisely how a court’s abdication of its responsibility to oversee the discovery process, when confronted with a consistently noncompliant party, benefits the wrongdoer and encourages him to persist in his noncompliance. Specifically, at the defendant’s subsequent deposition, rather than utilizing that time to question the defendant based on information that he had provided and using that information to develop a trial strategy, the plaintiff was forced to spend her time with the defendant to question him regarding the very same documents the production of which already had been ordered by the court on numerous occasions in response to her multiple motions for contempt. Furthermore, the defendant’s conduct during the deposition was defiant, disrespectful and uncooperative. During the course of the deposition, the defendant responded to the plaintiffs requests for already requested documents by claiming that: he had already produced the documents; he believed that his employer, and not he, was responsible for producing requested documents; in his judgment, the plaintiff did not need certain requested information; he had produced the requested documents at the last deposition; and the volume of requested documents was too vast to allow him reasonably to comply with production requests. At other times, the defendant responded to requests for documents by becoming agitated, complaining that the plaintiffs requests were “crazy,” “nuts” and “sick.” When the plaintiffs counsel asked the defendant to produce his credit cards, he became furious and threw his wallet at her. He repeatedly used obscenities throughout the proceedings, threatened at one point to leave, responded sarcastically to questions, and during one portion of the proceedings, was reading a magazine. The defendant’s behavior during his deposition exemplifies why a trial court should not refuse to sanction a non-compliant party for failure to obey court orders.
Most importantly, although the defendant had produced some of the requested documents during his deposition, the plaintiff
In the end, then, the plaintiff did receive partial relief for the defendant’s steadfast refusal to comply with the court’s prior orders of production. We cannot say, however, whether the plaintiff would have been successful in discovering further evidence of the defendant’s concealment of assets, a success which in turn could have resulted in a greater disallowance of the defendant’s explanations in response to the plaintiffs claims, and, therefore, in the plaintiffs receiving a larger portion of the marital estate. We cannot answer that question because the court’s refusal to consider the plaintiffs August 14, 2002 motion for contempt permitted the defendant to stonewall the plaintiff up to and including the trial. This dilemma aptly illustrates why as a matter of policy a court should not have discretion, in the absence of extreme and compelling circumstances, to refuse to consider a party’s motion properly before it.
We next turn to the remedy for the court’s improper refusal to consider the plaintiffs motion. Because the case already has been decided in the wake of that abuse, we cannot simply remand it for the court to consider the motion, as we were able to do in Ahneman. Thus, we are required to decide who has the burden of establishing the harm flowing from the trial court’s error, in order to decide whether the court’s error requires a new trial. Although ordinarily the burden to establish harm is borne by the party who claims the error — in this case, the plaintiff — we conclude, to the contrary, that under the unique circumstances of this case the defendant should bear the burden of showing no harm to the plaintiff as a result of the trial court’s refusal to consider the plaintiffs motion.
First, it would be grossly unfair to the plaintiff to require her to establish precisely how she was harmed in proving her case by not having access to the extensive list of already ordered discovery materials to which she never gained access solely as a result of the court’s refusal to consider her motion. In other words, the court already had ruled that she was entitled to discovery of those materials; see footnote 3 of this opinion; but then improperly refused to enforce its prior orders. She reasonably cannot be expected to establish how she was harmed in proving her case by reference to materials to which she was,
Second, placing the burden in this respect on the defendant who failed to comply fully with the court’s orders is consistent with our decision in Billington v. Billington, supra,
In the present case, the defendant has not attempted to establish such lack of harm; his sole contention on this claim by the plaintiff is that the court did not abuse its discretion in refusing to consider the plaintiffs motion. Because, as we have stated many times, the financial orders in a marital case are like a mosaic; see, e.g., Grimm v. Grimm,
II
Because it is likely to arise on remand, we next address the plaintiffs claim that the trial court improperly interpreted our decision in Maguire v. Maguire, supra,
We conclude that the trial court’s ruling declining to award attorney’s fees as part of the final financial orders was based on its accurate reading of Maguire. A fair reading of the court’s memorandum of decision establishes that it simply applied Maguire in denying the plaintiffs request for attorney’s fees, which was specifically based on the defendant’s litigation misconduct, because she had ample liquid funds to pay her attorneys.
We relied on these statutory provisions in Maguire, in concluding that the trial court improperly had ordered the defendant to reimburse the plaintiff for $50,000 in attorney’s fees. Maguire v. Maguire, supra,
Under Maguire, in a case such as the present one, in which an innocent party has incurred substantial attorney’s fees as a result of the other party’s litigation misconduct, the innocent party must nevertheless bear the full brunt of her attorney’s fees, as long as the innocent party has ample liquid funds to pay her attorneys, and as long as the lack of an award of attorney’s fees would not undermine the court’s other financial orders. This result would follow regardless of the seriousness, duration and pervasiveness of the other party’s litigation misconduct, regardless of how high the resultant cost to the innocent party, and regardless of any advantage the wrongdoer may have secured through his litigation misconduct, such as, for example, the successful concealment of a portion of his assets. Significantly, Maguire involved no allegations or findings of litigation misconduct. In that decision, therefore, the court did not consider whether one party’s attorney’s fees resulting from the misconduct of the other party should be recoverable apart from other financial orders.
In a subsequent decision that did involve both allegations and findings of litigation misconduct, we implicitly acknowledged that an expansion of Maguire would be appropriate. In Jewett v. Jewett,
Our conclusion that a court should have the discretion to award attorney’s fees to a party who incurs those fees largely due to the other party’s egregious litigation misconduct is consistent with the reasoning of our decision in Billington v. Billington, supra,
Public policy and principles of equity further support our expansion of the Maguire rule. Allowing recovery for attorney’s fees incurred due to litigation misconduct will discourage the recalcitrant marital litigant from evading his obligations of full and frank disclosure, and will encourage compliance with those obligations. When a marital litigant who does play by the rules has to expend her own funds to pay her attorneys significant amounts of money to enforce discovery orders against, and uncover assets hidden or transferred by, the other marital litigant who is flouting those rules, and when other orders of the court have not adequately addressed that wrongdoing by one party and harm to the other, it is only fair that the wrongdoer compensate the “innocent injured party [for having] to discover that which the wrongdoer already [was] legally obligated to disclose.” Id.
The present case aptly illustrates the need for expanding Maguire to allow a trial court the discretion to award attorney’s fees to address the litigation misconduct of a marital litigant. The record contains ample evidence of egregious litigation misconduct by the defendant, both before and during the trial, that would form the basis of such an exercise of discretion. The pretrial conduct of the defendant in failing to fulfill his obligations of full and frank disclosure, and of compliance with orders of the court, has been amply discussed in part I of this opinion.
With respect to the defendant’s misconduct dining the trial, in its decision the court explicitly noted the defendant’s pattern of deceit and disdain for the legal process. The court stated that the defendant “is a well educated, very intelligent and sophisticated international professional. However, instead of emphasizing these attributes, he has carried the pattern of deceit right into the courtroom, where, with barely concealed disdain for the legal process, he repeatedly feigned misunderstanding of plain English (the lingua franca of international business dealings), engaged in linguistic gymnastics, and had selective lapses of memory. He had to be repeatedly admonished by the court, and accordingly, the court found him to be less than credible in much of his testimony.”
In addition, during the trial, the court several times commented on the defendant’s misconduct. For example, at one point the court noted the defendant’s “obstructive, obstreperous behavior” on the witness stand; at another point the court noted that the defendant was “bound and determined to not listen to the questions. He’s going to tell it his way. He doesn’t care. He doesn’t care what I say, what [his counsel] say[s], what [the plaintiff’s counsel] says. He is going to tell it his way because he knows better than everybody in this courtroom. It’s wearing very, very thin. . . . And every single answer is like pulling teeth.”
As we already have noted, in denying the plaintiff’s request for attorney’s fees based on the defendant’s litigation misconduct, the court correctly interpreted the existing rule under Maguire in concluding that it did not have the discretion to consider such an award. In light of our decision today, however, the court will, on the remand, have such discretion. This does not mean, and we do not say, that the court must award such fees. Nor does it mean that the court may award such fees if it determines that the defendant’s misconduct adequately has been addressed by other orders of the court. It means only that, when a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts of money for attorney’s fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorney’s fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court’s other financial orders.
The sole case cited by the defendant in support of his claim that this expansion of Maguire improperly imposes a sanction on parties, Dobozy v. Dobozy,
The judgment is reversed as to the financial orders only and the case is remanded for a new trial on the financial issues.
In this opinion NORCOTT, KATZ and PALMER, Js., concurred.
Notes
Because we conclude that the trial court improperly failed to rule on the plaintiffs motion for contempt and sanctions based on the defendant’s repeated failure to comply with the court’s discovery orders, and that the rule under Maguire should be expanded to apply to the plaintiff, and accordingly we remand the case for a new trial, it is unnecessary for us to reach the plaintiffs remaining claims.
Two children were bom of the marriage, both of whom had reached the age of majority at the time of judgment.
The following is a summary of what the plaintiff claimed that the defendant had not provided to the plaintiff, despite orders to do so: the defendant’s United Kingdom tax return due April, 2002, and signed copies or supporting documentation for the tax returns that the defendant had supplied; from PriceWaterhouseCoopers, K-l forms for fiscal years ending September 30, 1997, 1998 and 2001, and 1099 forms from fiscal years ending September 30,1997,1998,1999,2000 and 2001; a copy of the defendant’s 1999 amended federal income tax return; Citibank Visa account summaries from 1998 to the present, along with a copy of the defendant’s letter to Citibank requesting the summaries; Citibank United Kingdom banking account statements for five separate accounts for December 17,1997, through December, 1998, and after October 31,2001; statements for the defendant’s Citibank United States accounts from January 1, 1998 through November 16, 1998, and December 14, 2001, to the present; the defendant’s 2001 tax returns or requests for extensions for filing; copies of letters sent to the main branches of three German banks confirming whether the defendant had accounts with any of those banks and the status of any such accounts (the defendant had mailed letters only to local branches and received no responses); year end account statements for the defendant’s Smith Barney accounts for 2000, 2001, and a copy of his then current statement — the defendant provided only incomplete statements for some of the requested periods; confirmation that the defendant had requested copies of PriceWaterhouseCoopers’ expense reports and reimbursement requests; any documents from the International Accounting Standards Board showing a cumulative year-to-date total of his income for 2001, other than the defendant’s pay stubs and not including his pay stub from January, 2002; documentation regarding any payments made to Theodora Landgren, the defendant’s mistress, arising from The Translation Group, Ltd., stock transactions including loan documentation, repayment of any loan and transactions concerning sale of stock; summary plan descriptions for any retirement plans with PriceWaterhouseCoopers; a copy of the defendant’s credit report; only incomplete portions of some of the requested Merrill Lynch account statements; updated individual retirement account, Keogh 401 (k) and other retirement plans, with the exception of a one page Internet printout showing 401 (k) savings; documents concerning the defendant’s relationship with BTS WordHouse, a Netherlands subsidiary of The Translation Group, Ltd.; statements from various American Express card accounts; documents pertaining to the defendant’s inheritance from his father; the defendant’s foreign sources of income, as well as income or honoraria derived from the defendant’s position on the board of directors at various unnamed institutions, or income related to the defendant’s various publications; and lastly, any canceled checks or check registers for the defendant’s bank accounts.
The dissent’s contention that the mere fact that the court held a hearing on the motion means that the court considered the motion is not supported by the record. The transcript of the hearing, on the contrary, shows that the trial court did not consider the plaintiffs motion, and in fact directed much of its remarks to explaining to the plaintiff exactly why it refused to consider the motion.
The plaintiff ultimately did depose the defendant over a period of five days, in order to inquire further as to his finances. The transcript of that deposition, however, makes clear that the plaintiff was required to do so without access to many of the documents that the defendant had been ordered to disclose.
We disagree with the dissent’s contention that the plaintiff failed to “object” to the court’s refusal to rule on her motion. First, unlike an evidentiary offer, there is no requirement that a party file a formal “objection” to a court’s ruling — or refusal to rule — on a motion. Second, the entire transcript evidences the numerous ways in which the plaintiff attempted to persuade the court to rule on the motion in her favor. For example, after the court stated that the case “has just got to be tried,” the plaintiff pointed out to the court that she had “not had an opportunity to go through the motion and argue the motion line-by-line.” Later in the hearing, the plaintiff attempted to explain to the court the extent of the defendant’s continued noncompliance in the face of repeated discovery requests made by the plaintiff seeking court-ordered production from the defendant. Referring to the burden placed on her in making those repeated requests, the plaintiff asked the court, “[W]hy does it then become my burden to say again and again and again we are still waiting for these documents, they haven’t come.” In response to the court’s assertion that she had a “core of good, vital information that you can work with,” the plaintiff responded: “You’re telling me we have a core of documents, but I don’t.” In response to this final attempt to persuade the court to hear her motion, the court instructed the plaintiff to take the defendant’s deposition, and to come to the court to be heard further if she had something “specific and vital, mqjor case . . . .”
The defendant had appealed to the Appellate Court from the trial court’s refusal to consider her financial motions. See Ahneman v. Ahneman, supra,
We recognize that a trial court, in order to deter litigation harassment and undue delay in the disposition of the cases on its docket, has an inherent managerial power to impose reasonable limits on discovery, so long as the parties are given due notice of such limits prior to their imposition. We also recognize that “the trial court has the responsibility to process cases in a timely and efficient manner,” and that principles of effective case flow management are “based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and, also when necessary, to enforce compliance with such standards.” Jaconski v. AMF, Inc.,
“(b) Such orders may include . . .
“(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence . . .
The plaintiff filed the motion in limine at the beginning of trial in response to the court’s direction, during the September 9, 2002 hearing, in response to the plaintiffs contention that, despite the court’s insistence to the contrary, she did not have “a core of good, vital information that [she could] work with,” that the plaintiff should “take [the defendant’s] deposition in October and you ask some of those questions, and maybe we can zero in on some of this . . . .” The court then reiterated, however, what it already repeatedly had stated: “[I]t’s time to try this case. That’s the message I have for both of you.” The court also imposed a much more demanding standard for the plaintiff to meet after the deposition, instructing the plaintiff that the court would hear her then, but only if “there’s something very, very specific as far as the discovery is concerned, I mean specific and vital, major case . . . .” (Emphasis added.)
The dissent’s characterization of the trial court’s decision as the “functional equivalent” of denying the plaintiffs motion without prejudice ignores the fact that the court set a much higher standard for the plaintiff to meet before the court would address the defendant’s discovery misconduct. After the defendant had complied only partially at his deposition, therefore, the plaintiff filed her motion in limine at the beginning of trial in an attempt to meet that higher standard. The dissent also contends that the plaintiff in effect waived any procedural defect by agreeing, at the beginning of the trial, to the trial court’s suggested procedure on her motion in limine. This contention wholly ignores the procedural context at that point, because it ignores the significance of the fact that the plaintiff was compelled to seek relief at the very outset of trial, rather than prior to it — namely, that the delay in the availability of relief for the defendant’s discovery abuse changed the very nature of the relief that she was able to request from the court. It would have been, as a practical matter, impossible for the plaintiff to renew her motion for contempt at that time, particularly given that the trial court had set a higher standard for her to meet in seeking further relief. At that point, therefore, any renewal of the plaintiffs August 12 motion for contempt would have been pointless, as well as any objection she may have raised regarding the trial court’s decision to refuse to consider that motion.
Moreover, we disagree with the dissent that the plaintiffs failure to renew her request for sanctions following the deposition of the defendant, or to request a new judge at the time of trial, signifies that the plaintiff had not construed the court’s decision to mark off her August 12 motion for contempt as an absolute refusal to consider the motion. On the contrary, the plaintiffs failure simply to renew her request for sanctions following the defendant’s deposition signifies that she did understand the trial court’s refusal to consider the August 12 motion to be absolute, unless she could meet the higher bar. Furthermore, the plaintiff was under no obligation to request that the case be assigned to a new judge. Such a request would have prolonged the matter even further.
The court determined that it was unnecessary to grant the relief requested pursuant to the plaintiffs motion in limine because, in its opinion, the defendant was not contesting the transfer to Meyer, and, therefore, the fact of the transfer had been “established to [the] court’s satisfaction.”
The sum of the trial court’s statements in its memorandum of decision with regard to the attorney’s fees were: (1) “The court finds that each party has sufficient liquid assets and each party shall be responsible for their separate attorney’s fees and costs incurred in connection with this action. Maguire v. Maguire, [supra,
As we already have noted, the plaintiff filed multiple motions for contempt and for sanctions for the purpose of obtaining compliance. These consisted of the following motions of the plaintiff and orders of the court:
(1) motion for compliance dated October 2, 2000, granted by the court; (2) motion for contempt dated February 5, 2001, for failure to comply with the court’s October 2, 2000 order, on which the parties stipulated and the court ordered compliance by the defendant within seven days; (3) a second motion for contempt, dated July 6, 2001, for the defendant’s failure to comply with the February 5, 2001 order, and a July 23, 2001 order of the court to the defendant to comply fully within thirty days and to pay the plaintiff $2500 in attorney’s fees if the plaintiff determined that he had not fully complied; (4) a third motion for contempt for the defendant’s failure to comply with the July 23, 2001 order, and an order by the court for the defendant to pay the plaintiff $25,000 in attorney’s fees and an additional $15,000 as a retainer for the costs of future discovery; (5) the defendant’s motion to reargue the plaintiffs third motion for contempt, dated February 1, 2002, resulting in an order of discovery mediation with a special master, and an order of the court denying the defendant’s motion to reargue and a further order that the defendant comply, within two weeks, with the court’s earlier order to pay $2500 in attorney’s fees; and (6) the plaintiffs final pretrial motion for contempt, filed August 14, 2002, which the court refused to consider.
These “other persons” were Landgren and Meyer; the plaintiff testified that the defendant had maintained sexual relations in Europe with both of these women while married to the plaintiff.
Dissenting Opinion
with whom VERTEFEUILLE and SULLIVAN, Js., join, dissenting. The majority reverses the trial court’s judgment as to the financial orders on the ground that the court improperly failed to rule on a pretrial motion for contempt and sanctions by the plaintiff, Melissa K. Ramin. The majority also expands the rule in Maguire v. Maguire,
I
I begin with the plaintiffs motion for contempt and sanctions. The majority concludes, on the basis of Ahneman v. Ahneman, 243 Conn. 471,
The following facts are relevant to a resolution of this issue. The plaintiff filed a motion for contempt and sanctions on August 14, 2002, after the defendant, Kurt P. Ramin, failed to comply with the court’s most recent discovery order. In her motion, the plaintiff asked the court to: (1) hold the defendant in contempt for his noncompliance with discovery; (2) order the defendant to produce all outstanding documents within one week or appear in court to show cause why he should not be incarcerated for wilful contempt; and (3) order the defendant to pay sanctions to the plaintiff and her reasonable attorney’s fees. On September 9, 2002, after hearing argument on the matter, the trial court, clearly exasperated by the parties’ continuing battle over discovery, declared that it was not inclined to decide the motion at that time. The court stated: “Take your depositions, see where you go. If there’s something very, very specific as far as the discovery is concerned, I mean specific and vital, major case, following the deposition, then I’ll hear you on it . . . (Emphasis added.) The plaintiff did not object to the trial court’s decision. Thereafter, the court marked the motion off the calendar, the plaintiff deposed the defendant over the course of five days in October and December, 2002, and the parties proceeded to trial in March, 2003.
At the commencement of the trial, the plaintiff filed a motion in limine requesting that “certain financial matters regarding which discovery was sought from the [defendant and with regard to which he failed and refused to comply, shall be established for the purposes of the action in accordance with the claims of the [p]laintiff.” The financial matters to which the motion referred included assets that the defendant had identified during his deposition, including funds that he had transferred to his girlfriend in Germany and a $70,000 retirement account that he had maintained in the United Kingdom. The motion also sought to preclude the defendant, pursuant to
In explaining her reasons for filing the motion, the plaintiffs counsel observed that, during the September 9 hearing, the court had “grown quite understandably frustrated with the discovery process and requested that we try and address it all at the time of trial.” (Emphasis added.) She then described the defendant’s continuing refusal to cooperate during his five day deposition and his noncompliance with her requests for the production of documents. When the court asked the plaintiffs counsel how she wanted the court to deal with the defendant’s ongoing discovery misconduct, she asked that it grant the motion in limine, stating: “[T]hat would seem to me to be the perfectly appropriate resolution.” She also requested attorney’s fees to sanction the defendant for the additional legal expenses incurred to obtain the information he had refused to produce.
Thereafter, the plaintiff requested on two separate occasions that sanctions be imposed against the defendant. On the first occasion, the defendant testified on direct examination that he had transferred approximately $194,000 out of the marital estate to his German girlfriend, Martina Meyer, without the plaintiffs consent following commencement of the dissolution proceedings. In denying the plaintiffs motion, the court explained that the defendant had stated that he did not intend to introduce any additional evidence contradicting his former testimony on the matter, and, consequently, improper removal of the assets in question was an “uncontroverted” fact that the court would take into account when making an equitable distribution of the marital estate at the conclusion of the trial. (Emphasis added.)
On the second occasion, the court granted the plaintiffs motion for sanctions with respect to the defendant’s proposed testimony on cross-examination regarding his removal of an additional $177,248 out of the marital estate without the plaintiffs knowledge or consent. The court explained: “I’m specifically tying [this decision] into the original motion in limine and I’m specifically tying it into [the defendant’s] responses and his behavior and what this court deems to be a calculated . . . effort to obstruct the discovery process and to move this case forward.” In its subsequent memorandum of decision, the court also explained that it had considered the defendant’s noncompliance with discovery when it formulated the financial orders distributing the marital estate.
“As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the
“At the same time . . . [discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . [T]he court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . Rules are a means to justice, and not an end in themselves . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard,
The trial court in the present case did not refuse to consider the plaintiffs motion for contempt and sanctions, but, rather, conducted a hearing on September 9, 2002, for that very purpose. At the conclusion of the hearing, the court chose, in the reasonable exercise of its discretion pursuant to our rules of practice; see
It is the duty of the reviewing court to make every reasonable presumption in favor of the trial court’s ruling. See Millbrook Owners Assn., Inc. v. Hamilton Standard, supra,
To the extent that the majority construes the trial court’s failure to render a formal ruling on the motion as an absolute refusal to consider the issues raised therein, I submit that the plaintiff herself would not have agreed with this conclusion. If she had believed that the court’s decision amounted to an absolute refusal, she could have claimed the motion or sought its reassignment to another judge pursuant to
On appeal to this court, we initially determined that we had jurisdiction to review the defendant’s claim because the trial court’s “decision not to consider the defendant’s motions” was the functional equivalent of a final judgment. Id., 480. We stated that, “[1] ike a formal denial, the effect of the court’s decision refusing to consider the defendant’s motions during the pendency of the appeal was to foreclose the possibility of relief from the court on those issues, unless and until the resolution of the appeal required further proceedings. Indeed, the refusal to consider a motion is more deserving of appellate review than a formal denial, because the defendant not only has been denied relief; she has been denied the opportunity even to persuade the trial court that she is entitled to that relief. Moreover . . . there is an unacceptable possibility that any harm suffered as a result of the court’s refusal to consider the motion will never be remediable.” Id.
We then considered whether the trial court had discretion to refuse to consider the motions and concluded that it did not. We stated that, “where a court is vested with jurisdiction over the subject-matter . . . and . . . obtains jurisdiction of the person, it becomes its . . . duty to determine every question which may arise in the cause .... [A] trial court must consider and decide on a reasonably prompt basis all motions properly placed before it [except] in an extreme, compelling situation,” such as “to prevent harassing or vexatious litigation” or in “other [undefined] circumstances . . . .” (Citation omitted; internal quotation marks omitted.) Id., 484-85. We ultimately determined that no extenuating circumstances existed in Ahneman that would have justified the trial court’s refusal to consider the disputed motions. Id., 485.
The present case is distinguishable from Ahneman because the trial court’s decision to mark the motion off the short calendar was not a final judgment that foreclosed the possibility of relief or that denied the plaintiff an opportunity to persuade the court that she was entitled to such relief. Unlike in Ahneman, the court in the present case exercised its jurisdiction when it conducted a hearing on the merits of the plaintiffs motion, listened to the parties’ arguments and advised the plaintiff at the conclusion of the hearing that she could seek future relief if the defendant did not comply with her requests for discovery during his deposition. When the defendant
I also disagree with the majority’s conclusion that the burden of establishing harm should be shifted from the plaintiff to the defendant “under the unique circumstances of this case . . . .” See Bovat v. Waterbury,
The majority provides two additional reasons for imposing such a requirement. The first is that it would be unfair to ask the plaintiff to demonstrate how she was harmed when she did not have access to important discovery materials, not identified by the majority, as a result of the court’s decision to mark her motion “off.” As previously discussed, however, the plaintiff had very specific reasons for seeking certain documents and was quite capable of explaining why the lack of that information would prevent her from making a more persuasive case against the defendant. In addition, the court did not rule that the plaintiff could not seek future relief as to the discovery materials described in her motion, such as the documents cited by the majority pertaining to the defendant’s $450,000 promissory note to Theodora Landgren. Indeed, such materials were exactly the type of information to which the court referred when it said that it would be willing to entertain a future hearing on the motion. Moreover, it was the plaintiff who decided not to seek another hearing on the motion following the defendant’s deposition, despite the invitation from the court, and it was the
The majority also justifies placing the burden to prove a lack of harm on the defendant by explaining that it is consistent with our reasoning in Billington v. Billington,
The quoted passage from Billington declares: “We have recognized ... in the context of an action based upon fraud, that the special relationship between fiduciary and beneficiary compels full disclosure..... Although marital parties are not necessarily in the relationship of fiduciary to beneficiary, we believe that no less disclosure is required of such parties when they come to court seeking to terminate their marriage. ” (Emphasis added.) Billington v. Billington, supra,
II
The majority next concludes that the rule articulated in Maguire should be expanded to grant the trial court discretion to award attorney’s fees as part of the financial orders when a party has incurred substantial legal expenses because of the other party’s litigation misconduct and “the other orders of the court have not already adequately addressed that misconduct.” I disagree with this holding because it is inconsistent with the governing statutes, fails to recognize the numerous remedial provisions in our rules of practice that permit an award of attorney’s fees as a sanction for discovery misconduct, and misapplies our well established case law on the matter.
“[A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of § 13-14, impose sanctions . . . .” Millbrook Owners Assn., Inc. v. Hamilton Standard, supra,
The court also granted the plaintiffs motion in limine, thereby accepting as an established fact for purposes of the action that the defendant improperly had transferred approximately $177,000 out of the marital estate to his girlfriend in Germany. Furthermore,
In its memorandum of decision, the court noted that the defendant had used “at least $395,000 in marital assets” for his own benefit and that the plaintiff had “spent enormous sums for attorney’s fees, in large part to trace these assets, with limited success.” (Emphasis in original.) The court also stated that, in dividing the parties’ property, it would be “equitable and appropriate” to take into account the defendant’s unauthorized disposition of $382,725 of the marital assets by giving the plaintiff a share of other assets as an offset. Finally, the court acknowledged in its articulation that, in formulating its financial orders, it had considered evidence introduced by the plaintiff at trial that the defendant had engaged in a “ ‘pattern of deceit.’ ” Thus, the court considered the evidence introduced by the plaintiff that the defendant allegedly had dissipated or wrongfully concealed marital assets that, from the trial court’s opinion and articulation, amounted to more than $900,000, and were distributed by the court so that the plaintiff received approximately 58.5 percent of the parties’ total financial assets and the defendant received approximately 41.5 percent. Accordingly, there is no need to expand the rule in Maguire because, as the present case amply demonstrates, the court has other methods at its disposal to compensate the “innocent” party.
In addition, the statutory scheme does not permit an expansion of Maguire in the manner suggested by the majority.
Indeed, an award of attorney’s fees to an “innocent” party, as suggested by the majority, would be inconsistent with the original justification for permitting such an award. In Steinmann v. Steinmann,
In sum, I believe that there is no need to expand the rule articulated in Maguire because the rules of practice provide the court with many other tools to compensate the “innocent” party for the financial burden incurred as a result of the other party’s misconduct. I agree with the majority that the conduct of the defendant in the present case was abhorrent and that his abusive behavior required the court to take appropriate action. I part company with the maj ority, however, when they suggest that our existing rules are inadequate and that the court failed or refused to employ them when it had the opportunity and obligation to do so. I would argue, to the contrary, that any suggestion that the court did not sanction the defendant for his discovery misconduct during the proceedings or account for his misconduct when fashioning its financial orders finds no support in the record. I would thus conclude that the trial court is not permitted by statute to make an award of attorney’s fees in its financial orders to punish a noncomplying party, that existing remedies are adequate to address significant discovery abuse and that parties subject to such abuse have a responsibility to exercise their right to obtain relief pursuant to those remedies, as the plaintiff did when she sought and received both monetary and nonmonetary sanctions against the defendant and obtained financial orders that took his discovery misconduct into account. For all of these reasons, I disagree with the majority that the rule in Maguire should be expanded.
I disagree with the majority that the issue in this case is not whether the trial court abused its discretion, but “whether a trial court has the discretion to refuse to consider a party’s motion for contempt.” In Ahneman v. Ahneman, supra,
Although the court stated that it would be open to hearing further argument only with respect to “specific and vital” information that the defendant failed to produce at his deposition, the court in fact granted the plaintiff discretion to request a hearing as to any or all of the discovery materials she sought in her motion, as long as she deemed them “vital” to her case. The ruling thus did not limit the plaintiffs ability to seek further discovery with respect to any of the materials identified in her motion.
The court denied the plaintiffs first request for sanctions as unnecessary because the defendant did not intend to contradict the damaging testimony. Consequently, the court stated that it would accept the evidence regarding the defendant’s transfer of assets out of the marital estate as an “uncontroverted" fact. (Emphasis added.)
“(b) A party seeking to invoke the provisions of this section shall not later than fourteen days after the expiration of the 120 day period file with the clerk a motion for reassignment of the undecided short calendar matter which shall set forth the date of submission of the short calendar matter, the name of the judge or referee to whom it was submitted, that a timely decision on the matter has not been rendered, and whether or not oral argument is requested or testimony is required. The failure of a party to file a timely motion for reassignment shall be deemed a waiver by that party of the 120 day time.”
This contrasts with the plaintiffs subsequent motion in limine, which she filed in response to the court’s prior declaration that it would consider all remaining “specific” and “vital” discovery issues following the defendant’s deposition.
Because I view such an award as punitive, I also note that it makes no sense to award attorney’s fees in the manner suggested if one of the purposes is to deter future misconduct, because the consequences suffered by the offending party, if any, are not imposed until long after the egregious behavior has occurred. Also militating against an award of attorney’s fees at the end of the trial to sanction the offending party is that the presiding judge may not have been present when the misconduct occurred, and thus would have no firsthand knowledge of its effect upon the proceedings. Consequently, the court might reject a legitimate request for attorney’s fees or reduce the size of such an award to the “innocent” party. Finally, simple logic suggests that sanctions like those provided in § 13-14 of our rules of practice, because they are imposed close in time to the alleged misconduct, are far more likely to have a deterrent effect upon the transgressor and promote appropriate conduct by the parties.